State v. BournaisAnnotate this Case
82 S.E.2d 115 (1954)
240 N.C. 311
STATE v. BOURNAIS.
Supreme Court of North Carolina.
May 19, 1954.
*116 Rose & Sanford, Fayetteville, Stacy Weaver, Jr., Durham, for defendant appellant.
Harry McMullan, Atty. Gen., T. W Bruton, Asst. Atty. Gen., for the State.
The defendant does not challenge the sufficiency of the evidence to carry the case to the jury. In fact, there is ample evidence to support the verdict. State v. Huggins, 214 N.C. 568, 199 S.E. 926; State v. Landin, 209 N.C. 20, 182 S.E. 689; State v. Palmer, 197 N.C. 135, 147 S.E. 817; State v. Gray, 180 N.C. 697, 104 S.E. 647; State v. McIver, 175 N.C. 761, 94 S.E. 682. However, he does except to and assign as error numerous portions of his Honor's charge to the jury, among them being the following: "In connection with this charge of involuntary manslaughter, * * * the Court instructs you that there are two types of manslaughter in North Carolina: voluntary and involuntary. Now, you are concerned in this case only with involuntary manslaughter; and the Court charges you that the crime of involuntary manslaughter for which this defendant is being tried as defined at the common law is the killing of a human being by another human being in doing some unlawful act not amounting to a felony nor likely to endanger human life and without intent to kill, or where one kills another without intent to kill in *117 doing a lawful act in an unlawful manner." (Italics ours.)
The gravamen of the defendant's challenge to the correctness of the above instruction is limited to the portion thereof we have italicized.
The elements embraced in involuntary manslaughter as defined at common law are set out in State v. Satterfield, 198 N.C. 682, 153 S.E. 155, 156, in the following language: "This offense consists in the unintentional killing of one person by another without malice (1) by doing some unlawful act not amounting to a felony or naturally dangerous to human life; or (2) by negligently doing some act which in itself is lawful; or (3) by negligently failing or omitting to perform a duty imposed by law." The Court said this definition "includes unintentional homicide * * * from the performance of a lawful act done in a culpably negligent way, and from the negligent omission to perform a legal duty."
In the above case, the State relied upon the alleged breach of the statute which requirs a motorist traveling on a servient highway to stop before entering a dominant highway. Public Laws of 1927, Chapter 148, section 21, now codified as G.S. § 20-158. The statute, however, contains a provision to the effect that no failure so to stop before entering the dominant highway "shall be considered contributory negligence per se in any action at law for injury to person or property * * *." The Court conceded there was ample evidence of Satterfield's disregard of the statute and that his failure to obey the law was the negligent omission of a legal duty, citing Ledbetter v. English, 166 N.C. 125, 81 S.E. 1066, but held that mere proof of the failure of the defendant to obey this statute was insufficient to warrant his conviction; that to hold a person criminally responsible for a homicide his act must have been a proximate cause of the death. Whereupon the Court held the motion to dismiss should have been granted.
We concede that in the present case it would have been appropriate and required less explaining as to what was meant by "doing a lawful act in an unlawful manner," if the court in lieu of using the words "in an unlawful manner," had used the words "in a culpably negligent manner." State v. Satterfield, supra; State v. Stansell, 203 N.C. 69, 164 S.E. 580. See also State v. Cope, 204 N.C. 28, 167 S.E. 456, where the late Chief Justice Stacy collected and classified the decisions applicable to negligence generally, including criminal or culpable negligence. But, in other parts of the charge, his Honor pointed out clearly the distinction between those statutes, the unintentional violation of which would not constitute culpable negligence, and those the violation of which would constitute such negligence. He likewise pointed out the difference between the unintentional violation of the common law rules of the road and the willful and wanton violation of such rules. For example, in this connection, his Honor charged the jury as follows: "* * * we have in North Carolina a number of rules which govern the operation of motor vehicles on our public highways. Some of them are statutory laws enacted by the Legislature of this State for the protection of the life and limb of those who travel and use our highways commonly known and referred to as the motor vehicle laws. Then we have other rules which are known as common law rules * * * which today govern the operation of motor vehicles on our public highways. The Court charges you that the violation of these rules and regulations, whether done intentionally or otherwise, is in most instances negligence, that is, constitutes actionable negligence, and renders one civilly liable for damages if the violation proximately results in some injury or damage or death to another. On the other hand, members of the jury, I want you to clearly understand that the violation of these rules and regulations, whether statutory or common lawwith the exception of the reckless driving statute, this is General Statutes of North Carolina, Section 20-140, and will be read and explained to youwhich do not involve actual danger to life, limb or property, would not perforce, that is by force, of *118 itself constitute criminal or culpable negligence such as this defendant is charged with. On the other hand, * * * I want you to clearly understand this: An intentional, willful or wanton violation of a statutory or common law rule or regulation designed for the protection of human life or limb or both, which proximately results in injury or death, is culpable negligence * * *. On the other hand, members of the jury, the Court wants you to clearly understand this: An unintentional violation, that is, where a person does not intend to violate a statutory or common law rule of the road unaccompanied by recklessness or probable consequences of a dangerous nature, when tested by the rule of reasonable previsionthat means foresightis not such as imports criminal or culpable negligence." The distinction between negligence that would and negligence that would not be culpable was emphasized throughout the charge and in our opinion, when it is considered contextually, as it must be, it contains no prejudicial error. State v. Davis, 225 N.C. 117, 33 S.E.2d 623; State v. Hunt, 223 N.C. 173, 25 S.E.2d 598; State v. Smith, 221 N.C. 400, 20 S.E.2d 360; State v. Elmore, 212 N.C. 531, 193 S.E. 713.
The above assignment of error forms the basis of the defendant's remaining exceptions and assignments of error. Therefore, in view of the conclusion we have reached, none of them should be sustained.
The charge of the court, when considered in its entirety, stated the applicable rules of law substantially in accord with the decisions of this Court. State v. Smith, 238 N.C. 82, 76 S.E.2d 363; State v. Swinney, 231 N.C. 506, 57 S.E.2d 647; State v. Hough, 227 N.C. 596, 42 S.E.2d 659; State v. Cope, supra; State v. Gash, 177 N.C. 595, 99 S.E. 337.
In the trial we find